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Supreme Court: public bodies must take cumulative approach to ‘public interest’ test


A recent ruling by the UK Supreme Court has clarified that a cumulative or holistic approach should be applied to the public interest test relating to qualified exemptions under the Freedom of Information Act 2000 (FOIA), dismissing an appeal by the Information Commissioner’s Office (ICO).

The case centres on the specific circumstances under which information held by a public body that has been requested under the FOIA can be withheld.

The dispute began in November 2017 when a journalist, Brendan Montague, made a FOIA request to the UK’s Department for Business and Trade for documents relating to trade working groups working on post-Brexit trade deals.

The department withheld some requested information, relying on two qualified exemptions under the FOIA – namely that the request included information that was “likely to prejudice international relations” and information “relating to the formulation of government policy”.

Since its implementation the FOIA has created a general right of access to or ‘right to know’ information held by public authorities, which include government departments and public bodies. This includes both a right to be informed of whether information requested is held by a public authority and – if this is found to be the case – the right for this information to be disclosed.

However, both of these rights are limited by provisions that exempt certain types of information from being disclosed, ranging from information regarding trade secrets and that could prejudice commercial interests, information endangering health and safety and information that poses risks for security bodies and national security to information disclosing government policy that could prejudice the effective conduct of public affairs.

Information can be withheld under ‘qualified’ and ‘absolute’ exemptions. A qualified exemption means that the public body is not obliged to disclose that type of information provided that “the public interest in maintaining the exemption outweighs the public interest in disclosure of the information”. This means that organisations are still obliged to conduct a 'public interest test' to determine whether it is right for information to be disclosed, with the presumption being in favour of disclosure.

Montague complained to the ICO, which upheld the government department’s decision to withhold the information. Montague then appealed to the First-tier Tribunal (FTT), which first raised the issue of whether, when faced with multiple qualified exemptions, a public body should apply the public interest test separately for each exemption, or whether it should be aggregated in a so-called ‘cumulative approach’. The FTT held that the cumulative approach should be applied, dismissing the relevant part of Montague’s appeal.

However, Montague was then permitted to appeal the FTT’s decision to the Upper Tribunal, which found that the public interest test for each statutory provision exempting information should be weighed separately against the public interest in disclosing that information. It ruled that the FTT had erred in its decision and it should be re-evaluated by the courts.

The department appealed the Upper Tribunal’s judgment. In response, the ICO argued that the Upper Tribunal’s judgment was correct and that the FOIA is structured in such a way to allow sequential consideration of single exemptions.

However, the ICO disagreed with this viewpoint and appealed to the Supreme Court, with Montague acting as an intervenor. The hearing took place in January earlier this year and on 23 July the Supreme Court handed down its judgment in the case, dismissing the ICO’s appeal and finding in favour of the FTT’s original decision that public bodies should apply a cumulative approach to the public interest test in cases involving multiple qualified exemptions.

Commenting on the judgment, Laura Gillespie, a disputes expert at Pinsent Masons, said: “This decision will be welcome news for public authorities as it clarifies that a cumulative, or holistic, approach is to be taken to the application of the public interest test when qualified exemptions are applied under the FOIA. Specifically, the Supreme Court noted that when looking at the public interest in maintaining an exemption, that related to the information’s exempt status, not to any singular provision which might create that status.”

Gillespie said the Supreme Court’s findings under the FOIA were consistent with other recent rulings – both by the court and the Court of Justice of the European Union – and has resolved a long-standing question surrounding how public authorities should approach exemptions under the FOIA and its legislative sibling, the Environmental Information Regulations (EIR) 2004, which apply when requests relate to environmental information. “This judgment should make the practical application of the public interest test more streamlined for information governance teams,” she said. “A consistent approach can now be taken under EIR 2004 and the FOIA, so that a cumulative approach can be taken on the application of the public interest test across all qualified exemptions and exceptions.”

The ICO said in a statement that it was considering the Supreme Court’s findings and how to implement them into its “own casework practice”, and would review the guidance it issues to organisations responding to FOI requests.

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